Citation Nr: 0832612
Decision Date: 09/23/08 Archive Date: 09/30/08
DOCKET NO. 07-12 342 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an evaluation in excess of 60 percent for
hypothyroidism.
ATTORNEY FOR THE BOARD
T. Y. Hawkins, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1971 to November
1975, from July 1978 to January 1979, and from May 1982 to
July 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Waco, Texas, which granted the veteran's claim for
service connection for hypothyroidism and assigned a 30
percent evaluation, effective April 7, 2004.
The Board notes that the evaluation of the veteran's service-
connected hypothyroidism disability was increased to 60
percent, effective April 7, 2004, in a February 2007 Decision
Review Officer decision. Since the RO did not assign the
maximum disability rating, the initial appeal for a higher
evaluation remains before the board. AB v. Brown, 6 Vet.
App. 35 (1993) (where a claimant has filed a notice of
disagreement as to an RO decision assigning a particular
rating, a subsequent RO decision assigning a higher rating,
but less than the maximum available benefit, does not
abrogate the pending appeal).
The Board also notes that the veteran was previously
represented by the Texas Veterans Commission. However, he
revoked his power of attorney for his representative in
October 2006.
FINDING OF FACT
The veteran's hypothyroidism is productive of depression and
subjective complaints of fatigability and cold intolerance;
however, his hypothyroidism has not been shown to result in
muscular weakness, cardiovascular involvement, mental
disturbance (dementia or slowing of thought), or consistent
bradycardia (a pulse rate of less than 60 beats per minutes).
CONCLUSION OF LAW
The criteria for an evaluation in excess of 60 percent
disabling for hypothyroidism have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7903
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claims, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326 (2007).
a.) Duty to Notify
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
claimants in substantiating their claims. VCAA § 3(a), 114
Stat. 2096, 2096-97 (2000) (now codified as amended at 38
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007)). In
addition, VA published regulations, which were created for
the purpose of implementing many of the provisions of VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in
pertinent part, at 38 C.F.R. § 3.159 (2007)).
Recently, the Court has held that, for an increased rating
claim, VCAA notice should include notice that evidence of
increased severity of the disorder or of greater interference
with work or activities of daily life is required to support
a claim for increased evaluation; that it include at least
general notice of more particularized bases of granting
increased evaluations where, as here, particular criteria
beyond mere increase in severity may be required for
assignment of a higher disability rating; that it include
notice that a particular rating will be assigned by applying
diagnostic codes; and that it include notice, in the form of
examples of the kinds of evidence required to support the
increased rating claim. Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008).
However, for initial rating claims, where, as here, service
connection has been granted and the initial rating has been
assigned, the claim of service connection has been more than
substantiated, as it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required since the
purpose that the notice was intended to serve has been
fulfilled. Furthermore, once a claim for service connection
has been substantiated, the filing of a notice of
disagreement with the rating of the disability does not
trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess
v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson,
21 Vet. App. 112 (2007). In line with the above reasoning,
Vazquez-Flores v. Peake (dealing with providing additional
notice in cases of increased ratings) does not apply to
initial rating claims because VA's VCAA notice obligation was
satisfied when the RO granted the veteran's claim for service
connection. 22 Vet. App. 37 (2007).
Nevertheless, the Board does note that a letter dated March
2006 advised the veteran of the evidence needed to
substantiate a claim for higher rating. He was also advised
of his and VA's responsibilities under VCAA, to include what
evidence he should provide and what evidence should be
provided by VA. The veteran was further advised to inform
the RO if there was any other evidence or information that he
felt was pertinent to his claims. That letter also contained
notice as to the effective date element of his claim.
Thereafter, the veteran's increased rating claims were
subsequently readjudicated by the RO in a June 2006 rating
decision, a February 2007 Decision Review Officer decision, a
February 2007 statement of the case, and a June 2007
supplemental statement of the case. Thus, the Board finds
any error with respect to the timeliness of this notice to be
harmless. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
b.) Duty to Assist
The Board also concludes that VA's duty to assist has been
satisfied. The veteran's available service treatment
records, private medical records and VA medical center (VAMC)
records are in the file. The veteran has not referenced any
other records that he wanted VA to obtain or that he felt
were relevant to his claim.
The duty to assist includes, when appropriate, the duty to
conduct a thorough and contemporaneous examination of the
veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In
addition, where the evidence of record does not reflect the
current state of the veteran's disability, a VA examination
must be conducted. See Schafrath v. Derwinski, 1 Vet.
App. 589 (1991); 38 C.F.R. § 3.327(a) (2007).
The veteran was provided VA examinations for his
hypothyroidism in March 2006, May 2006 and February 2007.
There is no evidence indicating that there has been a
material change in the severity of the veteran's service-
connected disability since he was last examined. See
38 C.F.R. § 3.327(a) (2007). The duty to assist does not
require that a claim be remanded solely due to the passage of
time since an otherwise adequate VA examination was
conducted. See VAOPGCPREC 11-95. These VA examination
reports are thorough and consistent with contemporaneous VA
treatment records. The examinations in this case are
adequate upon which to base a decision.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
II. Analysis
The Board has thoroughly reviewed all the evidence in the
veteran's claims file. Although the Board has an obligation
to provide reasons and bases supporting its decision, there
is no need to discuss, in detail, the evidence submitted by
the veteran or on his behalf. See Gonzales v. West, 218 F.3d
1378, 1380-81 (Fed. Cir. 2000) (the Board must review the
entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence and on what this evidence shows, or
fails to show, on the claims. The veteran must not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his or her ability to function under the
ordinary conditions of daily life, including employment, by
comparing his or her symptomatology with the criteria set
forth in the Schedule for Rating Disabilities. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity
resulting from such diseases and injuries and the residual
conditions in civilian occupations. Generally, the degree of
disabilities specified are considered adequate to compensate
for considerable loss of working time from exacerbation or
illness proportionate to the severity of the several grades
of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §
4.1 (2007). Separate diagnostic codes identify the various
disabilities and the criteria for specific ratings. If two
disability evaluations are potentially applicable, the higher
evaluation will be assigned to the disability picture that
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2007). Any reasonable doubt regarding the
degree of disability will be resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2007).
The veteran's entire history is reviewed when making a
disability determination. See 38 C.F.R. § 4.1 (2007). But
where service connection has already been established, and
increase in the disability rating is at issue, it is the
present level of the disability that is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55 (1994). However,
with regard to the veteran's claim for an evaluation in
excess of 60 percent disabling for hypothyroidism, where he
timely appealed the rating initially assigned for the
service-connected disability within one year of the notice of
the establishment of service connection for it, VA must
consider whether the veteran is entitled to "staged"
ratings to compensate him for any periods since filing his
claim when his disability may have been more severe than at
other times during the course of his appeal. See Fenderson
v. West, 12 Vet. App. 119 (1999).
The evaluation of the same disability under various
diagnoses, known as pyramiding, is generally to be avoided.
38 C.F.R. § 4.14 (2007). The critical element in permitting
the assignment of several ratings under various diagnostic
codes is that none of the symptomatology for any one of the
disabilities is duplicative or overlapping with the
symptomatology of the other disability. See Esteban v.
Brown, 6 Vet. App. 259, 261- 62 (1994).
The regulations establish a general rating formula for
disorders of the endocrine system. See 38 C.F.R. § 4.119
(2007). The veteran's service-connected hypothyroidism is
evaluated under Diagnostic Code 7903. The criteria for a 100
percent disability rating requires cold intolerance, muscular
weakness, cardiovascular involvement, mental disturbance
(dementia, slowing of thought, depression), bradycardia
(pulse rate of less than 60 beats per minutes) and
sleepiness. The criteria for a 60 percent disability rating
requires muscular weakness, mental disturbance and weight
gain. The criteria for 30 percent disability rating requires
fatigability, constipation and mental sluggishness. 38
C.F.R. § 4.119, Diagnostic Code 7903.
In a March 2007 statement in support of his claim, the
veteran contends that he is entitled to an initial disability
rating of 100 percent for his service-connected
hypothyroidism. After a careful review of the record, and
for reasons and bases expressed below, the Board finds that
the greater weight of probative evidence is against the
assignment of an initial disability rating in excess of 60
percent.
During his March 2006 VA examination, the veteran reported
subjective complaints of fatigability, memory loss,
constipation, insomnia and cold intolerance. The VA examiner
noted objective findings of high blood pressure, high
cholesterol, weight stability and normal strength. His heart
rate was 60 beats per minute. She also determined that his
thyroid was of normal size, and his hypothyroidism was being
controlled by medication. Based on these findings, the
veteran's disability rating was increased from 30 to 60
percent.
A higher evaluation of 100 percent is not warranted unless
there is objective medical evidence demonstrating that the
veteran suffers from cold intolerance, muscular weakness,
cardiovascular involvement, mental disturbance (dementia and
slowing of thought), bradycardia and sleepiness.
In a January 2006 letter, the veteran claims that he has
bradycardia, and has submitted medical reports from six
separate VAMC treatment examinations which indicate that his
pulse rate was less than 60 beats per minute at the time of
the examination. (See VAMC medical treatment reports from
January, March, July, October and November 2005; EKG report,
June 2005.) While the Board acknowledges that the veteran
did have symptoms of bradycardia in the past (See, e.g., VA
examination, July 2005; VAMC treatment examinations, January
- November 2005, September 2006, and March 2007), the more
recent medical evidence of record indicates that his pulse
rate has been above 60 beats per minute, and that he does not
currently have bradycardia. Specifically, during VAMC
medical examinations in March 2006, September 2006 and March
2007, the veteran's pulse rate was 60, 67 and 62
respectively. As previously noted, during the VA examination
in March 2006, the examiner noted that the veteran's
hypothyroidism was under control with medication.
The veteran also claims that based on his depression,
slowness of thought, lack of concentration, memory loss, and
loss of intellectual capacity, he has dementia, and thus,
meets the criteria for the 100 percent disability rating for
hypothyroidism. (See letter from veteran and attached copies
of Internet pages, March 2007.)
The veteran's treatment records and VA examinations indicate
that he has some problems with depression and subjective
memory loss and insomnia. He currently takes antidepressant
medication with good results. Although the veteran claims
that he has experienced a slowing of his mental processes,
significant difficulty with focusing and an inability to
remember things, and has submitted information from the
Internet to support his claim that he has dementia, the
medical evidence of record reveals that he has no thought
impairment, no delusions, no hallucinations, no panic
attacks, no behavioral problems, no suicidal or homicidal
ideations, or any other symptoms that would suggest dementia.
(See VA examinations, May 2006, February 2007.)
The Board notes that while the veteran has been diagnosed as
having depression and currently takes antidepressant
medication, during the May 2006 VA mental evaluation, the
veteran stated that although he had some suicidal ideation
prior to going on medication, since being on medication, his
symptoms greatly improved and were now "in an attenuated
form." On a scale of 1 to 10, with 10 being the best, the
veteran rated his depression at about a 7. Importantly, the
VA examiner did not note any findings of slowness of thought,
lack of concentration, memory loss, or loss of intellectual
capacity. Instead, the examiner found that the veteran's
communication was articulate and logical, with rate and flow
of speech within normal limits, no evidence of any delusions
or hallucinations, no suicidal or homicidal thoughts, no
panic attacks, and no loss of impulse control. He also found
that the veteran was able to manage his financial affairs.
The examiner concluded that the veteran had mood disorder
(depressed) secondary to general medical condition
(hypothyroidism). The examiner did not diagnose the veteran
as having dementia.
The Board finds that although the veteran has been diagnosed
with depression, and has subjective complaints of memory
loss, to the extent that he has any type of mental
impairment, based on the medical evidence of record, his
symptoms better approximate those associated with his current
60 percent hypothyroidism disability rating. (See the May
2006 and February 2007 VA examinations.) As previously
stated, he has symptoms of "mental disturbance" (mood
disorder (depressed)) as opposed to the dementia and slowness
of thought characteristic of a 100 percent hypothyroidism
disability.
Further, the Board observes that the veteran lacks the
competency to diagnosis himself as suffering from a mental
disturbance, to include dementia. Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Moreover, the self-serving aspect
of this assertion as well as the veteran's overall assertion
that the symptoms of his hypothyroidism warrants a total
schedular rating for his hypothyroidism can not be ignored.
In this regard, the Board's attention is drawn to a December
2006 Conference Report that notes that the veteran expressed
interest in receiving a schedular 100 percent rating, instead
of the total disability evaluation based on individual
unemployability he was receiving, because he wished to start
his own business. The veteran's understanding of the
differences between the two rating formulas and his
calculated approach to pursuing the higher schedular rating
clearly undermines his assertion that he suffers from mental
disturbance as contemplated by the diagnostic code.
With regard to the other symptoms necessary to establish a
100 percent disability for hypothyroidism, the Board notes
that there is no medical evidence of record to indicate that
the veteran has or has ever had any cardiovascular
involvement. Muscle weakness has not been identified; during
both the July 2005 and March 2006 VA examinations, the
examiners found that the veteran had normal strength.
Neither unusual weight gain nor fatigability was shown during
any of the VA examinations. And, as discussed above, the
veteran's subjective complaints of cold intolerance and
insomnia/sleepiness were not objectively diagnosed. The
overall evidence reflects only two (bradycardia and
depression) of the six criteria required for a 100 percent
disability rating under Diagnostic Code 7903. 38 C.F.R. §
4.119. The Court has observed that use of the conjunctive
"and" means that all requirements must be met. Cf. Cotton
v. Brown, 7 Vet. App. 325, 327 (1995). In essence, the
evidence better approximates the requirements for a 60
percent disability rating. For these reasons, the Board
concludes that the veteran's hypothyroidism does not more
nearly approximate the criteria for a 100 percent rating.
Although the Board has considered the potential application
of 38 C.F.R. § 3.321(b)(1), for exceptional cases where
scheduler evaluations are found to be inadequate (See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991)), the
veteran's disability has not been shown to cause marked
interference with employment beyond that contemplated by the
Schedule for Rating Disabilities, as discussed above.
Significantly, the veteran stated during a December 2006
telephone conference with the RO that he wished to have a 100
percent schedular evaluation so that he could discontinue his
individual unemployability compensation and start his own
dog-training business. He has not necessitated frequent
periods of hospitalization, and has not otherwise rendered
impractical the application of the regular schedular
standards utilized to evaluate the severity of the
disability. Thus, the Board finds that the requirements for
an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1)
have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218 (1995).
The Board concludes that the preponderance of the evidence is
against the claim for an increased rating, and the benefit-
of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not
for application, as there is not an approximate balance of
evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49
(1990),; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
Assignment of staged ratings is not for application. Hart v.
Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12
Vet. App. 119 (1999).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an evaluation in excess of 60 percent
disabling for hypothyroidism is denied.
____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs